A “view” from the Rose Garden: Sunny side up for Garland nomination

Posted Wed, March 16th, 2016 4:23 pm by Mark Walsh

We’ve made our way from our usual workplace, the Supreme Court, to the White House this morning after the dawn brought the news that President Obama would announce his pick for the vacancy on the Court.

I mean that figuratively, since the Court is not in session this week, and we made our way from home, which was potentially a challenge given that Washington’s subway system has been shut down for the day for electrical repairs. But the buses are running, along with the rest of traffic.

At 9:45 a.m. in the White House press briefing room and its warren of news organization alcoves, reporters are still wondering out loud about the president’s pick. The White House has kept a remarkable lid on this news. Just before 10 a.m., the White House correspondent for a major newspaper knocks on the door to the press office to say that “our congressional correspondent is tweeting that it’s [Merrick] Garland.” Can the press office confirm? Not yet, comes the answer.

At 10, a TV monitor in the press room tuned to CNN breaks the news. That network’s congressional correspondent, Manu Raju (who was my neighbor at the press tables for Elena Kagan’s confirmation hearings in 2010) says he has confirmed that Garland is the pick.

At 10:40 a.m., the press is escorted to the Rose Garden. We can choose to stay in the back, behind the seated guests, or sidle up to the right side of the guests. We sidle.

Guests are mostly standing and mingling. Most, if not all, nine Democratic members of the Senate Judiciary Committee are here, led by Senator Patrick Leahy of Vermont, the ranking Democrat. Senator Al Franken of Minnesota, the comedian who turned into an oh-so-serious politician, is finding something to laugh about with another guest in the second row.

Senator Richard J. Durbin of Illinois, the assistant minority leader in the Senate and a Judiciary Committee member, is here, as are Senator Amy Klobuchar of Minnesota, Charles Schumer of New York, and Richard Blumenthal of Connecticut, also committee members. Senator Dianne Feinstein of California soon joins them.

Senator Harry Reid of Nevada, the minority leader, arrives just minutes after he has taken to the Senate floor to praise the forthcoming pick.

There are senators present who aren’t on the Judiciary Committee, including Ben Cardin of Maryland and Cory Booker of New Jersey. District of Columbia Mayor Muriel Bowser is here.

The president’s cabinet is represented, too. Secretary of Homeland Security Jeh Johnson, Secretary of Transportation Anthony Foxx, and Secretary of Housing and Urban Development Julián Castro are here.

One group that is missing, besides Republicans of any position, is the judiciary. Although members of Congress, Cabinet secretaries, or other administration officials sometimes attend big Supreme Court arguments, there is no tradition of Supreme Court Justices attending nomination ceremonies. (Swearing-in ceremonies are a different matter.)

Solicitor General Donald B. Verrilli Jr. is here, one of the few familiar faces from the Supreme Court building.

As 11 a.m. draws near, there are some empty seats in the guest section. But there are also scores of young White House aides standing back along the portico leading from the West Wing to the White House. Some of them are asked to fill those empty seats before the ceremony begins.

There is also a palpable sense of surprise that the pick is Garland, and perhaps, a lack of boundless excitement in the air.

Just before the show begins, Garland’s wife, Lynn, and daughter Rebecca take seats in the front row. As Garland will point out, the couple’s other daughter, Jessica, is of an “adventurous” spirit and is hiking in the mountains somewhere out of cellphone range.

President Obama, Garland, and Vice President Joseph R. Biden Jr. emerge from a glass door of the Oval Office and Obama takes to the lectern, first describing the rigorous process he and his aides went through to pick a successor to Justice Antonin Scalia.

“And today, after completing this exhaustive process, I’ve made my decision,” the president says. “I’ve selected a nominee who is widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence.”

“These qualities and his long commitment to public service have earned him the respect and admiration of leaders from both sides of the aisle,” Obama continues. “He will ultimately bring that same character to bear on the Supreme Court, an institution in which he is uniquely prepared to serve immediately. Today, I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.”

There is sustained applause from the guests, as well as the White House staffers in the wings.

The president notes that “in law enforcement circles and in the legal community at large, Judge Garland needs no introduction. But I’d like to take a minute to introduce Merrick to the American people whom he already so ably serves.”

Obama proceeds to humanize a person who is probably a quite unknown quantity, mentioning that Garland was valedictorian at his suburban Chicago high school, graduating with honors from Harvard University and its law school, where, Garland had to work and otherwise raise money for tuition by “selling his comic book collection.”

Garland pats his hand to his heart.

Obama describes Garland’s resume—private law firm, taking a fifty-percent pay cut to become a federal prosecutor, chief prosecutor of the Oklahoma City bombers, and nominee to the D.C. Circuit who won praise from Republicans. The president quotes Sen. Orrin Hatch, Republican of Utah, praising Garland in 1997, and Chief Justice John G. Roberts Jr. as saying, “any time Judge Garland disagrees, you know you’re in a difficult area.”

Senator Leahy, a photography bug, is taking pictures with his high-end camera from his seat in the first row. The president turns to the political realities.

“I also know that because of Justice Scalia’s outsized role on the court and in American law and the fact that Americans are closely divided on a number of issues before the Court, it is tempting to make this confirmation process simply an extension of our divided politics, the squabbling that’s going on in the news every day,” he says. “But to go down that path would be wrong.”

Obama continues: “To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people might be treated, as one Republican leader stated, as a political pinata—that can’t be right.”

The March sun is growing warmer as the president finally invites Garland to say a few words.

The nominee immediately chokes up as he thanks Obama and says, “This is the greatest honor of my life, other than Lynn agreeing to marry me 28 years ago. It’s also the greatest gift I have ever received except, and there’s another caveat, the birth of our daughters, Jessie and Becky.”

He pays homage to his parents – his late father, Cyril, and his mother, Shirley, who is watching today on TV and “crying her eyes out,” as well as his sisters.

“It was a sense of responsibility to serve the community instilled by my parents that led me to leave my law firm to become a line prosecutor in 1989,” he says. “Years later, when I went to Oklahoma City to investigate the bombing of the federal building, I saw up close the devastation that can happen when someone abandons the justice system as a way of resolving grievances, and instead, takes matters into his own hands.”

“The people of Oklahoma City gave us their trust and we did everything we could to live up to it,” he continues. “Trust that justice will be done in our courts without prejudice or partisanship is what, in a large part, distinguishes this country from others. People must be confident that a judge’s decisions are determined by the law and only the law. For a judge to be worthy of such trust, he or she must be faithful to the Constitution and to the statutes passed by the Congress.”

Now, he sounds like he could be Justice Scalia.

“He or she must put aside his personal views or preferences and follow the law—not make it,” Garland says. “Fidelity to the Constitution and the law has been the cornerstone of my professional life. And is the hallmark of the kind of judge I have tried to be for the past 18 years.”

Obama, Biden, and Garland head back into the Oval Office. The guests slowly file out. Senator Schumer mouths the word “perfect” to White House Chief of Staff Denis McDonough as he files out. Senator Klobuchar praises the nomination to a small gaggle of reporters.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.